How to Think about Criminal Court Reform

By Feeley, Malcolm M. | Boston University Law Review, May 2018 | Go to article overview

How to Think about Criminal Court Reform


Feeley, Malcolm M., Boston University Law Review


INTRODUCTION

The American criminal court system rests upon the quest for perfection.1 Like the image of a "City on a Hill," it is a noble but flawed ideal. We aspire to have the Rolls Royce of criminal justice systems, and while a Toyota Corolla would suffice, what we have is a wreck. In this Article, I explore the reasons why this quest for an exceptional justice system has gone so wrong. In so doing, I set aside the problems of racism, carelessness, mean-spiritedness, incompetence, and inadequate funding-each of which is an extremely serious issue that exacerbates problems and undermines even the pretense of justice in many American communities.2 Instead, I want to focus on the "machinery of criminal justice," to draw on Stephanos Bibas's revival of an old phrase.3 This Article argues that the institutional design of the adversarial process fundamentally fails to provide a workable system of misdemeanor justice, and that this problem is compounded by the American governmental structure. Put simply, the institutional design of the criminal justice system is not up to the task of delivering justice to those charged with misdemeanors.

In the United States, we now have a unified theory of criminal justice. Almost all rights and guarantees that apply when a person is charged with armed robbery apply when a person is charged with shoplifting, breach of the peace, or trespassing.4 There were once many more differences, but colonial and earlynineteenth century magistrate courts gave way to police courts, which, in turn, gave way to a system of county, state, and federal courts.5 Similarly, throughout the twentieth century, criminal due process rights were significantly expanded, and then imposed on state prosecutions.6 Our legal system holds out the promise of a just process for anyone charged with a crime, and, on the surface, it is designed to permit, if not provide, it.7 Two questions guide my analysis: whether the institutional design of the adversarial system is capable of delivering on its promise of justice, and whether this institutional design fits within the hyperfragmented American governmental system.

Conceivably the moving parts of the adversarial process might work well if they functioned of their own accord, but they are placed within a fragmented governmental system in which the different parts are maintained by different levels of government, and allied institutions, such as police, jails, and prisons, are maintained by still other levels. Frank Zimring reminds us that the United States has fifty-plus separate criminal justice systems, each of which is essentially a separate sovereign.8 But this is just the beginning.

There are 3141 separate counties in the United States,9 and most of them select and finance their own prosecutors. We therefore have about that many separate judicial systems, though states now finance most courts. We have a bizarre mixture of public defense systems, which scrape by on various forms of funding. Almost everywhere, police are organized and financed at the municipal level, which means that the United States has over ten thousand separate law enforcement agencies. And, for the most part, jails are organized at the county level and run by elected sheriffs, while prisons are administered and financed by state or federal governments. It is as if the separate parts of the machinery of justice were manufactured by one group, assembled by another, and operated by still a third, all working without a common blueprint or meaningful coordination, let alone oversight. Add to this a multiplicity of municipal, county, and state budgets that finance the machinery of justice as well as elections that select a fair number of those who run the machinery, and the picture is complete.

This fragmentation of function is not distinctive to the administration of criminal justice. It reflects the administration of American education, welfare, public health, and transportation policies. …

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